Can the proponents of Proposition 8 appeal Judge Walker’s ruling?

"There has been a bit of chatter on-line about whether Judge Walker's
decision in Perry v. Schwarzenegger, 2010 Westlaw 3025614 (N.D.Cal.,
Aug. 4, 2010), finding Proposition 8 unconstitutional, can be appealed
by the Proponents of Proposition 8, who are defendant-intervenors in
the case, when the actual named defendants, Gov. Schwarzenegger,
Attorney General Brown, and a handful of other state officials, have
not signified their intention to appeal. Indeed, one might even
question Judge Walker's decision to allow the Proponents to intervene
when the defendants signified that they were not going to defend
Proposition 8 from the constitutional challenge.

"In papers filed opposing the motion to stay the judgment, counsel
for the plaintiffs raise this point, in a section titled 'There Is a
Significant Question As To Whether Proponents Even Have Standing to
Invoke the Jurisdiction of the Court of Appeals.' This section of the
paper relies on two U.S. Supreme Court opinions: Arizonans for Official
English v. Arizona, 520 U.S. 43 (1997), and Diamond v. Charles, 476
U.S. 54 (1986).

"In Diamond, a doctor who was opposed to abortion sought to defend
some Illinois anti-abortion measures that had been declared
unconstitutional by a federal district court. ...

... "The Arizona case is a bit different. Arizona's constitution was
amended by ballot initiative to make English the official language of
the state, requiring that all state business be conducted in English.
A Hispanic employee of the state sued to have the amendment declared
unconstitutional, and won her case. The state decided not to appeal.
At that point, the proponents of the amendment sought to intervene to
appeal the ruling. ...

... "Justice Ginsburg wrote: 'An intervenor cannot step into the shoes of
the original party unless the intervenor independently fulfills the
requirements of Article III.' The Arizona English organization claimed
that they were intervening in the case in a quasi-legislative capacity,
but the Court was doubtful. 'AOE and its members, however, are not
elected representatives, and we are aware of no Arizona law appointing
initiative sponsors as agents of the people of Arizona to defend, in
lieu of public officials, the constitutionality of initiatives made law
of the State. Nor has this Court ever identified initiative proponents
as Article-III-qualified defenders of the measures they advocated.'

"Because the ultimate result in this case was to dismiss the lawsuit,
the Court noted, the Arizona English organization could still pursue
enforcement of the English-only amendment in the state courts, and thus
lacked a concrete injury that needed to be vindicated through federal
appeal.

... "So where does this leave us? A strong indication from the Supreme
Court that initiative proponents whose efforts result in the enactment
of laws or constitutional amendments generally do not have standing to
participate as parties in subsequent litigation concerning their
constitutionality, and are even less likely to be found to have
standing to appeal an adverse ruling on constitutionality if the state,
itself, decides not to appeal. Although the Supreme Court refrained
from actually ruling on the question in the Arizona case, it certainly
signaled a disposition against finding standing in such a situation.

"Whether the 9th Circuit will construe things that way when it is
called to rule on the Proponents' appeal of Judge Walker's decision is
uncertain, as is the question whether the Supreme Court would extend
its reasoning in the Arizona English case to cover this situation. But
it is certainly a plausible argument that a decision by the governor
and attorney general may mean that the case stops here.

"On the one hand, that would be fortunate for those who want to marry
in California. On the other hand, it means that Judge Walker's
decision remains merely a trial court ruling and order, with no
precedential authority beyond the state of California. For those who
think that Walker's very persuasive decision can survive appellate
review, this may seem like a lost opportunity to achieve a regional
(9th Circuit) or nationwide precedent that could then be used to attack
similar amendments in more than 30 states."